Murray v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 18731/91

by John MURRAY

against the United Kingdom

The European Commission of Human Rights sitting in private on

18 January 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 August 1991 by

John Murray against the United Kingdom and registered on 27 August 1991

under file No. 18731/91;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 25

February 1993 and the observations in reply submitted by the

applicant on 7 June 1993;

- the observations submitted by the parties at the oral hearing on

18 January 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen, born in 1950 and presently

detained in HM Prison The Maze, Belfast. He is represented before the

Commission by Messrs. Madden and Finucane, Solicitors, Belfast.

The facts as submitted by the parties may be summarised as

follows.

The applicant was arrested by police officers at 5.40 pm on

7 January 1990 pursuant to section 14 of the Prevention of Terrorism

(Temporary Provisions) Act 1989. The applicant was cautioned by the

police according to the terms of Article 3 of the Criminal Evidence

(Northern Ireland) Order 1988 (hereafter referred to as the Order), the

relevant part of which provides as follows:

"Circumstances in which inferences may be drawn from accused's

failure to mention particular facts when questioned, charged,

etc.

3 (1) Where, in any proceedings against a person for an

offence, evidence is given that the accused

(a) at any time before he was charged with the offence, on being

questioned by a constable trying to discover whether or by whom

the offence has been committed, failed to mention any fact relied

on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that

he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the

accused could reasonably have been expected to mention when so

questioned, charged or informed, as the case may be, paragraph

(2) applies.

(2) Where this paragraph applies

(a) the court, in determining whether to commit the accused for

trial or whether there is a case to answer,

(b) a judge, in deciding whether to grant an application made by

the accused under Article 5 of the Criminal Justice (Serious

Fraud) (Northern Ireland) Order 1988 (application for dismissal

of charge where a case of fraud has been transferred from a

magistrates' court to the Crown Court under Article 3 of that

Order), and

(c) the court or jury, in determining whether the accused is

guilty of the offence charged,

may

(i) draw such inferences from the failure as appear proper;

(ii) on the basis of such inferences treat the failure as,

or as capable of amounting to, corroboration of any evidence

given against the accused in relation to which the failure

is material.

(3) Subject to any directions by the court, evidence tending to

establish the failure may be given before or after evidence

tending to establish the fact which the accused is alleged to

have failed to mention."

In response to the police caution the applicant stated, "I have

nothing to say."

The applicant was taken to Castlereagh Police Office at about

7.00 pm. He refused to give his personal details to the officer opening

the custody record. At 7.05 pm, he was informed of his right to have

a friend or relative notified of his detention but indicated that he

did not require that anyone be so notified. At 7.06 pm, the applicant

indicated that he wished to consult with a solicitor named Mr. Francis

Keenan. At 7.30 pm, the applicant's access to a solicitor was delayed

on the authority of a Detective Superintendent pursuant to section

15(1) of the Northern Ireland (Emergency Provisions) Act 1987. The

delay was authorised for a period of 48 hours from the time of

detention on the basis that the detective Superintendent had reasonable

grounds to believe that the exercise of the right of access

"..<would> lead to interference with the gathering of information

about the commission, preparation or instigation of acts of

terrorism; or by alerting any person <would> make it more

difficult-

i. to prevent an act of terrorism, or

ii. to secure the apprehension, prosecution or conviction of any

person in connection with the commission, preparation or

instigation of an act of terrorism."

At 9.27 pm, a police officer saw the applicant in a cell at

Castlereagh Police Office. He further cautioned the applicant pursuant

to Article 6 of the Order, the relevant part of which provides as

follows:

"Inferences from failure or refusal to account for presence at

a particular place

6 (1) Where

(a) a person arrested by a constable was found by him at a place

or about the time the offence for which he was arrested is

alleged to have been committed, and

(b) the constable reasonably believes that the presence of the

person at that place and at that time may be attributable to his

participation in the commission of the offence, and

(c) the constable informs the person that he so believes, and

requests him to account for that presence, and

(d) the person fails or refuses to do so,

then if, in any proceedings against the person for the offence,

evidence of those matters is given, paragraph (2) applies.

(2) Where this paragraph applies

(a) the court, in determining whether to commit the accused for

trial or whether there is a case to answer, and

(b) the court or jury, in determining whether the accused is

guilty of the offence charged, may

(i) draw such inferences from the failure or refusal as

appear proper;

(ii) on the basis of such inferences, treat the failure or

refusal as, or as capable of amounting to, corroboration of

any evidence given against the accused in relation to which

the failure or refusal is material.

(3) Paragraphs (1) and (2) do not apply unless the accused was

told in ordinary language by the constable when making the

request mentioned in paragraph (1)(c) what the effect of this

Article would be if he failed or refused to do so.

(4) This Article does not preclude the drawing of any inference

from the failure or refusal of a person to account for his

presence at a place which could properly be drawn apart from this

Article."

The police officer served the applicant with a written copy of

Article 6 of the Order. The applicant replied, "Nothing to say."

At 10.40 pm, the applicant requested consultation with a

different firm of solicitors, Madden and Finucane. The reasons for the

delay in access to a solicitor were reviewed but it was concluded that

they remained valid reasons.

On 8 and 9 January 1990, the applicant was interviewed twelve

times by police detectives at Castlereagh Police Office. Before each

interview the applicant was either cautioned under Article 3 of the

Order or reminded that he was under caution. The applicant maintained

silence throughout these interviews.

When he was able to see his solicitor for the first time at 6.33

pm on 9 January 1990, he was advised to remain silent, which he did

during the following two interviews. His solicitor was not permitted

to be present during these interviews.

The applicant was tried by a single judge, the Lord Chief Justice

of Northern Ireland, sitting without a jury, on 8 May 1991, for several

offences including that of conspiracy to murder, aiding and abetting,

with seven other people, the false imprisonment of a certain Mr. L. and

of belonging to a proscribed organisation ie the Provisional Irish

Republican Army.

The Crown case was that for some time prior to January 1990

Mr. L. had been a member of the Provisional I.R.A. and had also been

giving information about the activities of the Provisional I.R.A. to

the Royal Ulster Constabulary. The Provisional I.R.A. discovered that

Mr. L. was an informer and tricked him into going to a house, 124

Carrigart Avenue, in the Lenadoon district of Belfast, on the evening

of Friday 5 January 1990. Once he was in that house, he was falsely

imprisoned on the orders of the Provisional I.R.A. and was kept captive

in one of the rear bedrooms of that house until the arrival of the

police and the army at the house on the afternoon of Sunday 7 January

1990 In addition to the false imprisonment of Mr. L., the Crown also

made the case that there was a conspiracy to murder him as punishment

for being a police informer. The applicant was one of the people in

the house when the police entered on 7 January and rescued Mr. L.. At

no time did the applicant give any explanation for his presence in that

house.

At the close of the prosecution case, the judge, acting in

accordance with Article 4 of the Order, called upon each of the eight

accused to give evidence in their own defence. The relevant part of

Article 4 of the Order provides as follows:

"Accused to be called upon to give evidence at trial

4 (1) At the trial of any person (other than a child) for an

offence paragraphs (2) to (7) apply unless

(a) the accused's guilt is not in issue, or

(b) it appears to the court that the physical or mental condition

of the accused makes it undesirable for him to be called upon to

give evidence;

but paragraph (2) does not apply if, before any evidence is

called for the defence, the accused or counsel or a solicitor

representing him informs the court that the accused will give

evidence.

(2) Before any evidence is called for the defence, the court

(a) shall tell the accused that he will be called upon by the

court to give evidence in his own defence, and

(b) shall tell him in ordinary language what the effect of this

Article will be if

(i) when so called upon, he refuses to be sworn;

(ii) having been sworn, without good cause he refuses to

answer any question;

and thereupon the court shall call upon the accused to give

evidence.

(3) If the accused

(a) after being called upon by the court to give evidence in

pursuance of this Article, or after he or counsel or a solicitor

representing him has informed the court that he will give

evidence, refuses to be sworn, or

(b) having been sworn, without good cause refuses to answer any

question, paragraph (4) applies.

(4) The court or jury, in determining whether the accused is

guilty of the offence charged, may

(a) draw such inferences from the refusal as appear proper;

(b) on the basis of such inferences, treat the refusal as, or as

capable of amounting to, corroboration of any evidence given

against the accused in relation to which the refusal is

material."

Acting on the advice of his solicitor and counsel, the applicant

chose not to give any evidence. No witnesses were called on the

applicant's behalf. Counsel on his behalf, with some support from the

evidence of a co-accused, submitted, inter alia, that the applicant's

presence in the house just before the police arrived was recent and

innocent.

In finding the applicant guilty of the sole offence of aiding and

abetting the false imprisonment of L., the judge held as follows:

"I now turn to consider the fifth count charging the false

imprisonment of L. against the accused <the applicant>. For the

reasons which I have already stated, I am satisfied that, as L.

described in his evidence, <the applicant> was at the top of the

stairs pulling the tape out of the cassette after the police

arrived outside the house.

I am also satisfied, for the reasons which I have already stated,

that <the applicant> was in the house for longer than the short

period described by D.M.. I am further satisfied that it is an

irresistible inference that while he was in the house <the

applicant> was in contact with the men holding L. captive and

that he knew that L. was being held a captive. I also draw very

strong inferences against <the applicant> under Article 6 of the

1988 Order by reason of his failure to give an account of his

presence in 124 when cautioned by the police on the evening of

7 January 1990 under Article 6, and I also draw very strong

inferences against <the applicant> under Article 4 of the 1988

Order by reason of his refusal to give evidence in his own

defence when called upon by the Court to do so.

Therefore I find <the applicant> guilty of aiding and abetting

the false imprisonment of L. because, knowing he was being held

captive in the house, he was present in the house concurring in

L. being falsely imprisoned. As Vaughan J. stated in R. v. Young

8C and P 644 at 653, 173 ER 655 at 659 cited with approval by

Cave J. in R. v. Coney (1882) 8 QBD 534 at 541, <the applicant>

was 'near enough to give <his> aid and to give <his> countenance

and assistance.'"

The applicant was sentenced to eight years' imprisonment.

The applicant appealed against conviction and sentence to the

Court of Appeal in Northern Ireland on the ground, inter alia, that the

judge had erred in holding that the words of the Article 6 caution

conformed with the requirement that an accused be told in ordinary

language what the effect would be if he failed or refused to account

for his presence at the scene of a crime.

In its judgment of 7 July 1992, the Court dismissed the

applicant's appeal. It held, inter alia:

"We consider that there was a formidable case against <the

applicant>. He was the only one of the accused whom <L.> observed

and identified as playing a positive part in the activities

touching his captivity. <L.>'s evidence therefore called for an

answer. No answer was forthcoming of any kind to the police or

throughout the length of his trial. It was inevitable that the

judge would draw "very strong inferences" against him."

COMPLAINTS

The applicant complains that he is the victim of a violation of

Article 6 paras. 1 and 2 and Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 August 1991 and registered

on 27 August 1991.

On 10 September 1992, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 25 February 1993

after two extensions in the time-limit fixed for this purpose and the

applicant's observations in reply were submitted on 7 June 1993 after

one extension in the time-limit.

On 8 April 1993, the Commission decided to grant legal aid to

the applicant.

On 30 August 1993, the Commission decided to invite the parties

to an oral hearing.

At the hearing, which took place on 18 January 1994, the parties

were represented as follows:

For the Government

Mr. H. Llewellyn Agent

Mr. P. Coghlin Q.C. Counsel

Mr. J. Eadie Counsel

Three advisers were also present.

For the applicant

Mr. S. Treacy Counsel

Mr. K. Winters Solicitor, Madden and Finucane

Ms. K. Quinlivan Adviser

Mr. L. McStay Adviser

THE LAW

The applicant complains that he was deprived of the right of

silence in the criminal proceedings brought against him as a result of

the operation of the provisions of the Criminal Evidence (Northern

Ireland) Order 1988 which permitted a judge, sitting without a jury,

to draw inferences from his failure to answer police questions and from

his failure to give evidence in his own defence during the trial. He

further complains that he was deprived of access to his solicitor in

the first 48 hours of his detention and that his solicitor was not

permitted to be present during interviews which took place after that

initial period. The latter was in conformity with the practice in

Northern Ireland, which differs from that in England and Wales. The

applicant invokes Article 6 paras. 1 and 2 and Article 14

(Art. 6-1, 6-2, 14) of the Convention, which provide as relevant:

Article 6 para. 1 (Art. 6-1):

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law..."

Article 6 para. 2 (Art. 6-2):

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

Article 14 (Art. 14):

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government submit that the provisions of the 1988 Order did

not operate to deprive the applicant either of a fair hearing contrary

to Article 6 para. 1 (Art. 6-1) or of the presumption of innocence

contrary Article 6 para. 2 (Art. 6-2). They refer to the safeguards

provided in the Order: no inference may be drawn unless the

suspect/accused has been warned in advance of the possible effect;

before any inference is drawn, the prosecution must have established

a prima facie case against the accused; the judge has a discretion

whether to draw an inference and is limited to drawing only such

inferences as may be proper. The Order merely allows the trier of fact

to draw such inferences as common sense dictates. In the present case,

there was a formidable case against the applicant which called for

evidence from the applicant if there was an innocent explanation for

his conduct. The burden of proof remained throughout on the

prosecution.

As regards the denial of access by the applicant to his solicitor

for 48 hours, the Government contend that this delay did not

disadvantage the applicant in the conduct of his defence and therefore

discloses no violation of Article 6 (Art. 6) of the Convention. Since

the police have similar powers to delay access in England and Wales,

they submit that there is no discrimination in this respect within the

meaning of Article 14 (Art. 14) of the Convention.

As regards the refusal of permission to the applicant's solicitor

to be present during his interviews with the police, the Government

state that this too did not affect the conduct of the applicant's

defence and disclosed no violation of Article 6 (Art. 6) of the

Convention. The difference in this respect between the position in

England and Wales and that in Northern Ireland, based as it was solely

on the geographical location at which a person was arrested and

detained, did not amount to discriminatory treatment within the meaning

of Article 14 (Art. 14) of the Convention.

The applicant submits that the 1988 Order, which permits

inferences to be drawn from the failure of an accused to answer police

questions or to give evidence, and the reliance placed upon it by the

trial judge in the instant case, violate Article 6 para. 1 (Art. 6-1)

of the Convention. The very strong inferences drawn by the trial judge

in the applicant's case played a crucial role in his conviction. It is

submitted that it is a generally recognised principle of international

law that an accused person cannot be required to incriminate himself,

that Article 6 (Art. 6) of the Convention enshrines this principle, and

that the drawing of an incriminating inference from an accused's

failure to give evidence infringes his right to a fair trial.

The applicant also submits that the drawing of an incriminating

inference from the failure of an accused person to give evidence has

the effect of placing the burden of proof on an accused and is

manifestly inconsistent with the presumption of innocence guaranteed

in Article 6 para. 2 (Art. 6-2) of the Convention. Further, the denial

of access by the applicant to his solicitor for 48 hours and the

discriminatory practice of not permitting solicitors to be present at

any stage while a person arrested under prevention of terrorism

provisions is being interviewed, violates Article 6 (Art. 6) either

alone or read in conjunction with Article 14 (Art. 6+14) of the

Convention. The discriminatory element derives, inter alia, from the

fact that in England and Wales, contrary to the practice in Northern

Ireland, all detained persons, including those detained under

prevention of terrorism legislation, are permitted to have their legal

representative present during the police interviews.

The Commission has taken cognizance of the submissions of the

parties. It considers that the applicant's complaints raise serious

issues of fact and law under the Convention, the determination of which

should depend on an examination of the merits. It follows that the

application cannot be dismissed as manifestly ill-founded. No other

ground for declaring it inadmissible has been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)